California ruling on teacher tenure fuels NH debate

Officials from New Hampshire's teacher unions and legal experts agree a court ruling handed down last week declaring tenure for public school teachers in California unconstitutional will have no immediate effect on local educators, but could spark efforts to do away with similar job protections in the future.

On Tuesday, a California judge struck down tenure and other job protections for public school teachers in the Golden State, saying such laws harm students - particularly poor and minority ones - by pairing them with bad teachers who are nearly impossible to dismiss, according to the online posting of the ruling. In making his decision, Los Angeles County Superior Court Judge Rolf Treu cited Brown v. Board of Education, saying students have a fundamental right to equal education.

Siding with the nine students who brought the lawsuit, Vergara v. California, he ruled California's laws involving hiring and firing in public school districts have resulted in "a significant number of grossly ineffective teachers currently active in California classrooms."

Heads of teacher unions in New Hampshire reacted strongly to the ruling.

"From the beginning, this lawsuit has highlighted the wrong problems, proposed the wrong solutions and followed the wrong process," said Scott McGilvray, president of the New Hampshire chapter of the National Education Association, the state's largest teachers union. "This lawsuit was not about helping students, but yet another attempt by millionaires and corporate special interests to undermine the teaching profession and push their agenda on California public schools and students."

"I think the decision focused on the wrong issues," said Laura Hainey, president of the New Hampshire chapter of the American Federation of Teachers. "The judge argued that no one should tolerate bad teachers in a classroom, and he's right. But by focusing on teachers who are such a small percentage of the workforce, he's taking away the voices of hundreds of thousands of teachers doing a good job."

In his ruling, Judge Treu raised concerns with laws saying the last-hired teacher must be the first fired during layoffs.

"This is a closely watched case nationally," said Todd DeMitchell, professor of education and justice studies at the University of New Hampshire. "Unions were not explicitly targeted in this case. Instead, the statutes and the implementation of the statutes by school administrators, especially the dismissal statutes, was the focus. A lawsuit based on the quality of education provided is new."

U.S. Education Secretary Arne Duncan hailed the judge's ruling as a chance for schools everywhere to open a conversation on equal opportunity in education, according to a statement issued by Duncan's office.

New Hampshire Commissioner of Education Virginia Barry and Deputy Commissioner Paul Leather did not respond to requests for comment.

"I think this is another example of a misconception people have with the term 'tenure,'" said Ben Dick, president of the Manchester Education Association. "People hear that word and think it means you can never get rid of someone who isn't doing their job. That's not what we have in Manchester or in New Hampshire. The fact is there is no such thing as teacher tenure in any New Hampshire public school, and no teacher, regardless of the length of time they have been teaching, has a guaranteed job for life. We have 'continuing contract status.'"

In New Hampshire

For decades, New Hampshire teachers reached "tenure" - or continuing contract status - after completing either three years of teaching in the same district or two consecutive years of teaching in the same school district and three or more consecutive years in another school district in New Hampshire.

That changed on July 1, 2011, when SB 196 became law, bringing several amendments to RSA 189:14-a, known as the "teacher tenure" law.

The criteria to achieve continuing contract status increased to five consecutive years in the current school district, or three consecutive years in the current school district and five or more consecutive years in another New Hampshire school district.

"The fact is there is not one contract in this state that makes it impossible to dismiss a teacher," said Dick. "Every collective bargaining agreement signed with school districts in this state has a provision for the removal and dismissal of teachers."

"Teachers don't have tenure - that's a misnomer - and they certainly don't have a job for life," said McGilvray.

"The ability to have their case reviewed by an objective panel ensures that school boards or administrators don't fire good teachers they may disagree with or who speak out on issues like student safety or appropriate use of district funds."

The California trial is just the latest skirmish in a national effort to eliminate or toughen standards for giving teachers permanent employment security and seniority-based preferences during layoffs, DeMitchell said. New Hampshire is one of 10 states that prohibit the use of tenure or seniority when making layoff decisions.

McGilvray, Hainey and Dick all said they are unaware of any organized efforts in the state to change or eliminate aspects of continued contract status.

"Not yet, anyway, but you don't know what effect a decision like this might have," said Hainey. "Someone might decide it's the right time to try."

DeMitchell raised two questions:

"Will New Hampshire legislators rush to embrace the perception that Judge Treu has provided the roadmap to get rid of the incompetent, and in the process reduce if not break the teacher unions?" asked DeMitchell.

"Or will New Hampshire legislators take a reasoned approach realizing that the Vergara decision does not state that tenure is wrong, that due process should be eliminated and that seniority has no place? The Claremont decision held that education is a fundamental right; therefore, strict scrutiny could be used if New Hampshire tenure and dismissal statutes were challenged in state court as being unconstitutional . ''